Traditions
and Anecdotes

The Supreme Court’s Opening Ceremonies, 1754

It was a day of pomp and ceremony designed to impress the citizens of
Halifax, a frontier town barely five years old. On October 22, 1754, Jonathan
Belcher, a lawyer newly arrived from England, presided over an elaborate
ceremony to mark his installation as Nova Scotia’s first chief justice.

Local dignitaries and the colony’s half-dozen lawyers gathered
that Monday morning outside the governor’s residence. Belcher, dressed
in a scarlet robe with a grey wig spilling over his shoulders (the uniform
of Britain’s high court judges), walked beside Governor Charles Lawrence
over streets Belcher later noted were “not yet levell’d or
paved.” The group proceeded to the Pontac tavern for “an elegant
breakfast.” After dining, and after “a gathering of ladies,
army officers and merchants tendered congratulations,” the procession
reformed. Led by an official bearing a copy of Belcher’s commission
for all to see, the group marched to St. Paul’s Church for a service
intended to link the power of the court, and of the government, with the
authority of the church.

The next stop was the courthouse, then located at the opposite end of
the Grand Parade, which had been “very handsomely fitted up” for
the occasion. Belcher, seated under a canopy with the governor at his right
side, listened as his commission was read. When it was his turn to speak,
he offered “a few directions for the guidance of (law) practitioners.” A
grand jury was empaneled for the court’s inaugural sitting, and Belcher
used his instructions to the jurors to stress respect for the law and the
local government. The court’s establishment showed the King’s “Concern
for the Rights and Liberties of his Loyal Subjects,” he said, urging
the jurors to wield the “Sword of Justice” for the “protection
of the innocent, and to the terror of the noxious and guilty.”

Court then adjourned for the day – the grand jury’s review
of the ten criminal cases on the docket, and the subsequent trials, began
the following week. As a finale to the ceremonies, the chief justice and
his entourage reassembled for a parade back to Governor Lawrence’s
residence.

For more information, see John Quinpool, First Things in Acadia (Halifax:
First Things Publishers, 1936), pp. 239-40; Beamish Murdoch, A History
of Nova Scotia, or Acadie (Halifax: James Barnes, 1865), vol. 2, pp.
250-1.

Wigs and Gowns

Those attending a Supreme Court session for the first time may be surprised
to discover that the judge and lawyers dress in black gowns for trials
and most hearings. The practice appears to date to about 1300, when a limited
number of people were granted the right to practice before the English
courts – wearing a robe or gown made them instantly recognizable
as attorneys. Judges began donning long-hooded robes about the same time
and eventually adopted gowns. One story holds that early judges favoured
cape-like gowns so they could stay warm while riding on horseback from
town to town to hold court.

While styles varied, today’s simple black gown became the standard
attire after 1685, when it was first worn as a symbol of mourning for King
Charles II. Gowns crossed the Atlantic along with the common law, and the
handful of lawyers plying their trade in Nova Scotia when Jonathan Belcher
arrived in 1754 wore gowns to ceremonies marking his swearing-in as chief
justice. In portraits, Belcher and other early chief justices are decked
out in flowing robes of scarlet trimmed in fur, which remains the style
for judges of the Supreme Court of Canada. By 1900, Canadian judges and
lawyers favoured wearing “tabs” – two strips of white
linen – at the neck, a style that has persisted. While lawyers wear
only black, a sash of coloured cloth distinguishes the rank of other judges.
In Nova Scotia, Supreme Court judges wear a red sash on their gowns. Sashes
of Court of Appeal and Provincial Court judges are black, while those of
the judges of the Family Court are green – a colour chosen because
it signifies life and Family Court judges protect the welfare of children
and families.

The horsehair wigs long favoured by judges and lawyers in Britain and
many Commonwealth countries originated in the seventeenth century, when
it was the fashion for everyone of importance to wear them. Like gowns,
they served to distinguish the wearer’s office and command respect.
Wigs did not survive efforts to transplant them to the New World, however.
Americans rejected them as they did many other trappings of British rule – Thomas
Jefferson once complained that “monstrous wigs” made “the
English judges look like rats peering through bunches of oakum (strands
of rope).”

Nova Scotia’s early judges wore wigs. In official portraits that
hang in the Halifax Law Courts, the first chief justice, Jonathan Belcher,
and his successors Sir Thomas Andrew Strange and Sampson Salter Blowers
all sport billowing wigs that hang to their chests. Jeremy Pemberton, who
was chief justice in the late 1780s, Richard Bulkeley, a vice-admiralty
judge of the same era, and Sir Alexander Croke, a vice-admiralty judge
from 1801-1815, also wore wigs. R.B. Dickey once recalled that judges were
still wearing wigs when he began practicing law in Amherst in 1834. Sir
Brenton Halliburton, who replaced Blowers in 1833, was the first chief
justice to be depicted bare-headed in his portrait, suggesting wigs were
out of fashion in this province by the mid-nineteenth century. Judges in
Upper Canada appear to have dispensed with wigs even earlier, due to their
high cost and the discomfort to the wearer. It was not until 1905 that
British Columbia passed a law banning wigs from its courtrooms.

Source: “Gowns,” article by Justice John deP. Wright of the
Ontario Court of Justice (General Division).

White gloves

For much of the Supreme Court’s history, a pair of white gloves
served as a symbol of purity and a reflection of civic pride. If there
were no criminal cases to be heard when a Supreme Court judge traveling
on circuit came to town, the sheriff or other local official would signify
the area’s crime-free status by formally presenting the judge with
a pair of white gloves.

The practice originated in England, where sittings of the courts on circuit
were known as assizes, and was adopted in Nova Scotia and beyond. Historian
A.W.H. Eaton, writing in 1910, noted it was the custom for lawyers in Kings
County to attend the court’s opening day and to present the visiting
judge with a pair of white kid gloves when there were no criminal cases
on the docket in Kentville. In neighbouring New Brunswick, the Saint
John Daily Sun reported that the judge holding court in the city during
the month of November 1888 had been given a pair of white gloves, “indicating
that there was no criminal business to come before the court.”

The tradition appears to have survived into the 1970s (and possibly even
longer) in some of the smaller centres where the Supreme Court holds sittings.
Its demise may be a reflection of the times – as crime became more
prevalent, even in rural areas, there were fewer occasions when the court’s
docket was crime free.

Hardships and Hazards: The Early Years of the Supreme Court on Circuit

For its first two decades, the Supreme Court heard cases only in Halifax.
But as the colony grew, so did demands for the court to hold trials in
the new communities that were springing up in the Annapolis Valley, northern
Nova Scotia and along the South Shore. The Supreme Court Circuit Act of
1774 established a circuit system, requiring the court to hold sessions
twice a year in Annapolis, Kings and Cumberland counties. The circuit system
grew as new areas were settled and when Cape Breton Island was annexed
to the mainland in 1820, and by 1851 the court sat in all counties at least
once a year.

Until 1834, two Supreme Court judges were required to travel each circuit
unless a second judge was unavailable or ill (with the exception of a brief
period, 1805-1809, when one-judge circuits were permitted). The province’s
early roads were sometimes little more than rough tracks, making travel
on horseback or by carriage slow and tedious. Circuits tended to run from
May to October, with the winter weather and the spring thaw conspiring
to restrict court sittings to Halifax for the rest of the year. Not surprisingly,
some judges dreaded traveling on circuit. To Justice Thomas Chandler Haliburton,
presiding outside the city was “severe labour.”

The Cape Breton circuit was the toughest – the island had so few
roads in the early years that the authorities hired boats to ferry judges
to and from court sessions. Justice William Blowers Bliss considered it “in
the highest degree arduous and severe” to journey there. In 1825
Brenton Halliburton, who went on to become chief justice, returned from
a Cape Breton stint and told a colleague that he wished the island were
still a separate colony. The worst circuit horror story, however, belongs
to Justice William DesBarres. In June 1854, the small sailboat carrying
him across the Bras d’Or Lakes sank, leaving him clinging to the
wreckage until help arrived. A Sydney lawyer accompanying him to court
drowned in the incident.

The Royal Coat of Arms, a symbol of the Nova Scotia Supreme Court, has
graced a succession of Halifax courthouses since colonial times. Now displayed
above the bench in the Court of Appeal’s sixth-floor courtroom at
the Halifax Law Courts, it was almost lost forever during the court’s
latest move.

The coat of arms depicts a crowned lion and a unicorn on either side
of a shield, which is topped with the royal crown and bears the emblems
of the components of the United Kingdom – three lions of England,
the harp of Ireland and the Scottish lion. The shield is trimmed with the
motto Honi soit qui mal y pense, which means Evil to him who evil
thinks. Below the figures and shield is the motto of the sovereign, Dieu
et mon droit – God and my right.

When the Supreme Court moved from the Spring Garden Road courthouse – its
home since 1860 – to the Law Courts building on the waterfront in
1971, the arms apparently did not follow, at least for a few years. The
old courthouse was renovated to house a provincial library and, in the
process, the historic coat of arms was relegated to a storage room. Chief
Justice Ian MacKeigan and a fellow judge of the court’s Appeal Division,
Justice Gordon Cooper, reputedly rescued and refurbished the tattered emblem
in the late 1970s or early 1980s, and restored it to its rightful place.

Source: Reminiscences set out in a memo of Justice Ted Flinn, dated April
8, 2001.

The Judges’ Affair

Less than forty years after the Supreme Court was established, the authority
and credibility of its judges and judgments came under fire in a five-year
political and legal struggle that came to be known was “The Judges
Affair.”

It began when Chief Justice Bryan Finucane died in office in 1785. The
British authorities were slow to name a replacement – Jeremy Pemberton
was appointed chief in 1788 but presided over just one term of the court
and resigned after 14 months. That left assistant judges Isaac Deschamps
and James Brenton to carry the court’s workload. Deschamps, as senior
judge, acted an interim chief justice even though he lacked legal training.

The tide of Loyalist refugees from the American colonies in the 1780s
brought a number of lawyers to Halifax, men eager to re-establish their
practices or fill a vacant judgeship. They viewed the undermanned and under-experienced
Supreme Court with a mixture of jealousy, suspicion and contempt. Deschamps
and Brenton were attacked as ignorant of the law and accused of bias, particularly
for favouring Nova Scotian litigants over Loyalists.

The controversy spilled into the political arena and in November 1787
the House of Assembly voted to investigate the judges’ conduct. The
matter was then referred to the governor and his council, but the council’s
February 1788 response cleared the judges of charges of partiality and
incompetence and labeled the assembly’s allegations “groundless
and scandalous.”

The exoneration failed to quell the controversy. Loyalist lawyers Jonathan
Sterns and William Taylor outlined their complaints in the press, prompting
the judges to disbar both men for contempt of court. In 1790 the assembly
conducted a second investigation and voted to impeach Deschamps and Brenton
and demanded their dismissal for “high crimes and misdemeanours.” The
Privy Council of the British government reviewed the allegations and finally
put the matter to rest in 1792, clearing both judges and condemning their
detractors. By then an English lawyer, Thomas Andrew Lumisden Strange,
had been appointed chief justice, bringing legal expertise and stability
to the court. In 1809 the assembly bolstered the court’s credibility
by passing a law requiring its judges to have practiced law for at least
ten years.

For more information on the Judges’ Affair, see Barry Cahill and
Jim Phillips, “The Supreme Court of Nova Scotia: Origins to Confederation,” in
Philip Girard, James Muir and Cahill, eds., The Supreme Court of Nova
Scotia 1754-2004: From Imperial Bastion to Provincial Oracle (Toronto:
University of Toronto Press, 2004)